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Court of Appeal:
Daughter Properly Sought Elder-Abuse Protection for Father
Opinion Rejects Contention by Lawyer Who Is Subject of Restraining Order That Judge Was Without Power to Proceed in Absence of Determination That Party for Whose Benefit Action Was Brought Lacks Capacity to Make His Own Decisions
By a MetNews Staff Writer
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Above is a screenshot from the Sarlo Family Foundation website depicting former venture capitalist George Sarlo and daughter Susannah “Susie” Sarlo. The First District Court of Appeal on Monday held that the daughter had standing to seek an elder abuse restraining order without the court first making a finding that the father was not competent to act on his own.
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JAIME B. HERREN attorney
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Div. Three of the First District Court of Appeal has held that a bench officer did not err in permitting the daughter of an octogenarian to file for an elder abuse restraining order protecting her father against contacts by a lawyer without first determining whether the man had the capacity to make his own litigation decisions, rejecting the contention that a presumption of competency had to be overcome before the lower court had authority to act.
Marin Superior Court Commissioner Janet L. Frankel issued the order, pursuant to Welfare & Institutions Code §15657.03, a part of the Abuse and Dependent Adult Civil Protection Act. Acting Presiding Justice Carin T. Fujisaki authored the opinion, filed Monday, affirming that order.
Her opinion declares that “substantial evidence supports the trial court’s finding” that attorney Jaime B. Herren of Contra Costa County “committed elder financial abuse by exerting undue influence to obtain a property right”—a commitment to pay a $100,000 retainer—from the protected party.
That party is Holocaust survivor, former venture capitalist and philanthropist George Sarlo, who was born Jan. 31, 1938 in Hungary. He came to the United States in 1956 and amassed a fortune exceeding $100 million.
The order was obtained by one of his two daughters, Susannah “Susie” Sarlo, to whom the father in November 2022 entrusted a power of attorney. She had been co-trustee of a trust the father had created; pursuant to a term of that instrument, after two doctors certified him to lack competence to handle his affairs, the daughter became sole trustee.
Herren’s Perspective
Herren, a principal in the Orinda firm of Hartog Baer Zabronsk, told the METNEWS:
“The courts simply got this case wrong.”
She maintained:
“There is no precedent for holding that entering into an engagement for legal representation with an elder is elder abuse, undue influence or a wrongful taking of any kind.”
The lawyer recounted:
“My firm received a referral that was not directed to me. I took an intake call and set up an in-person meeting with George Sarlo because he was asking to speak to an attorney.”
That call to the law firm came from Gabriella Sarlo, George Sarlo’s other daughter. There was evidence that the father viewed his status as a prisoner in his own home and that he wanted Susannah Sarlo to be removed as trustee and to have a court adjudication as to his competency.
Herren explained:
“I spoke to George Sarlo for approximately one hour after I was informed that he wanted to hire an attorney. He unambiguously wanted to retain counsel. He signed an engagement with my firm for legal services.”
Daughter Susannah Sarlo “[u]nfortunately…chose not to honor Mr. Sarlo’s wishes to retain an attorney,” she continued, adding:
“Importantly, neither my firm, nor l have received any funds from Mr. Sarlo, not one penny.”
The lawyer said of the result reached by the Court of Appeal:
“It’s a shocking and unfair outcome, and it is a horrific legal precedent for elders seeking representation and for attorneys and fiduciaries who represent them.”
Presumption of Capacity
Herren advised:
“Everyone is presumed to have capacity and I testified that Mr. Sarlo understood the act of engaging me.”
That presumption is contained in Probate Code §810(a) which provides, with respect to legal mental capacity:
“(a) For purposes of this part, there shall exist a rebuttable presumption affecting the burden of proof that all persons have the capacity to make decisions and to be responsible for their acts or decisions.
“(b) A person who has a mental or physical disorder may still be capable of contracting, conveying, marrying, making medical decisions, executing wills or trusts, and performing other actions.
“(c) A judicial determination that a person is totally without understanding, or is of unsound mind, or suffers from one or more mental deficits so substantial that, under the circumstances, the person should be deemed to lack the legal capacity to perform a specific act, should be based on evidence of a deficit in one or more of the person’s mental functions rather than on a diagnosis of a person’s mental or physical disorder.”
Probate Code §811 specifies:
“The mere diagnosis of a mental or physical disorder shall not be sufficient in and of itself to support a determination that a person is of unsound mind or lacks the capacity to do a certain act.”
Fujisaki’s Opinion
Fujisaki wrote:
“…Herren cites no authority indicating that Susannah was required to rebut a presumption of George’s capacity in order to have authority or standing to request a restraining order pursuant to section 15657.03 of the Elder Abuse Act, or that the trial court was required to determine George’s capacity before adjudicating the restraining order application.”
She went on to say:
“By its terms, the act contains no language suggesting that Probate Code section 810’s presumption of capacity must be rebutted before a trustee or an attorney-in-fact may seek protection of an elder from this type of abuse.”
The jurist pointed out that the declared purpose of the act, as set forth in §15600(j) is, with italics added by Fujisaki, “to enable interested persons to engage attorneys to take up the cause of abused elderly persons and dependent adults,” remarking:
“Not only does Herren’s proposal to require an adjudication of capacity appear contrary to the language of the Elder Abuse Act, but it would discourage restraining order applications for elders who are not incapacitated but are nonetheless vulnerable to abuse, which appears contrary to the Legislature’s intent to broadly allow standing in elder abuse cases.”
No Independent Counsel
Herren pointed out that in light of the elder abuse restraining order against her, “Mr. Sarlo is currently left without legal counsel.” Actually, he is represented—the Court of Appeal’s register lists Susannah Sarlo’s lawyer as George Sarlo’s counsel—but he does not have independent counsel.
“On the first day I appeared before the trial court” Herren recited, “ I requested appointment of a guardian ad litem for Mr. Sarlo so that he wouldn’t be left completely unrepresented. The trial court denied the request.”
The lawyer noted that six advocacy groups representing interests of the elderly filed amicus curiae briefs in support of her position and that the opinion “dismissed amici’s concerns in one sentence.”
Fujisaki said of the amici’s position:
“Several amici curiae…suggest affirmance of the instant restraining order would imply that an attorney commits elder abuse ‘simply by meeting alone with the client.’ ”
Justice’s Response
Responding to that contention, the justice wrote:
“Herren’s and amici’s concerns are off the mark. This is not a situation in which a finding of elder financial abuse is predicated on the mere circumstance that an attorney met with a putative client who has diminished capacity. Rather…the record contains ample evidence Herren committed financial abuse by exerting undue influence in meeting with George alone to secure his consent to legal representation and a $100,000 retainer fee, even though she knew he had been declared incompetent by two medical professionals.”
Herren said yesterday that she did not know that, elaborating:
“The idea that I could have known of this family dispute, the family’s extensive history and Mr. Sarlo’s extensive medical history is ludicrous. It was a one hour intake meeting with a new client. This information would have taken months of discovery and, in fact, took days of trial to present to court. No attorney can learn that amount of information on intake. They are also wrong that I could have investigated without being engaged as counsel and using the power of discovery.”
Other issues are dealt with by Fujisaki in a portion of the opinion that was not certified for publication.
The case is Herren v. George S., 2025 S.O.S. 554.
Although George Sarlo’s surname appears in trial court documents and in Court of Appeal briefs, as well as on the Internet in connection with the case, the defendant/respondent was denominated in the opinion as “George S.,” with Fujisaki citing in a footnote a provision in the California Rules of Court that is expressly only for sake of “guidance on the use of names in appellate court opinions.”
She added:
“So as not to defeat the objective of anonymity, we likewise refer to persons who share his last name by their first name and last initial.”
The opinion was reposted yesterday “to provide correct version.” Not corrected was a reference to San Francisco Superior Court Judge Simon J. Frankel as the trial court judge rather than the Marin commissioner who actually presided.
Fujisaki made mention at the outset of the opinion that the order expired in January but said:
“Neither party has addressed the issue of mootness in their briefs, and we exercise our discretion to consider the merits, as there may be a recurrence of controversy between the parties.”
Actually, the record shows that Susannah Sarlo filed a motion to extend the order which remains in effect, automatically, pending a hearing on the motion.
Herren scoffed that the opinion “is littered with errors, most of which were copied directly from appellee’s brief.”
Sale of Mansion
George Sarlo’s San Francisco mansion, with a clear view of Golden Gate Bridge, was sold last year for $26 million. Proceeds went to the Sarlo Family Foundation, which benefits youth.
The foundation’s website says:
“The Sarlo family includes Holocaust survivors, immigrants, and refugees. We are entrepreneurs, businessmen and women, philanthropists, and parents.”
Herren expressed this view:
“Susannah Sarlo runs that private foundation and had somewhat recently removed both Mr. Sarlo and her sister from the board. I believe that I unknowingly walked into a family dispute that revolved around Susannah Sarlo’s sale of Mr. Sarlo’s residence and distribution of the proceeds into an entity under her control.”
Copyright 2025, Metropolitan News Company